KESAVA KURUP KUNJUPILLAI KURUP Vs. SEBASTIAN ELUPRASYA FERNANDEZ
HIGH COURT OF KERALA
KESAVA KURUP KUNJUPILLAI KURUP
SEBASTIAN ELUPRASYA FERNANDEZ
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(1.)This second appeal raises a question of considerable importance to the Latin Catholic Christian Community residing in Central Travancore and concerns the interpretation of S.30 of the Travancore Christian Succession Act, which will be referred to hereinafter as the Act. That section reads as follows:
"S.24, 28 and 29 shall not be applicable to certain classes of the Roman Catholic Christians of the Latin Rite and also to certain Protestant Christians living in Karunagapally, Quilon, Chirayinkil, Trivandrum. Neyyattinkara, and other Taluks, according to the customary usage among whom the male and female heirs of an intestate share equally in the property of the intestate.
So far as those Christians are concerned, nothing in the aforesaid sections shall be deemed to affect the said custom obtaining among them."
[S.24, 28 and 29 of the Act exclude daughters and other female heirs from succession to the properties of an intestate.]
(2.)The plaint properties (A schedule landed properties, and B schedule movables) belonged to the late Sebastian Fernandez and his wife, Gregoria Fernandez, who were Latin Catholic Christians resident in Karunagapally Taluk. They died intestate leaving behind two daughters, the plaintiff and the 6th defendant, and a son, John Fernandez. The 1st defendant is the widow, and defendants 2 to 5 are the children of John Fernandez. The plaintiff claims one third share in the plaint properties as her inheritance under the custom referred to in S.30 of the Act, ignoring the alienations made by John Fernandez in favour of defendants 8 and 9 as not binding on her interests.
Defendants 1 to 5, 8 and 9 denied the custom alleged by the plaintiff, and asserted John Fernandez to have inherited the entire plaint properties to the exclusion of his sisters who had been given dowries at the time of their marriage.
The courts below have accepted the plaintiff's case and decreed one third share of the plaint A schedule properties to her. As regards the plaint B schedule movables, their appropriation by John Fernandez was accepted by the court as their value equaled the dowry paid to each of his sisters, which, under S.33 of the Act, has to be taken into account in the distribution of the estate among the heirs. Defendants 8 and 9 have come up in second appeal.
(3.)The courts below have assumed that the custom set up by the plaintiff has been given statutory recognition in S.30 of the Act and therefore requires no proof by parties in particular cases. The Munsiff held:
"I do not understand S.30 to mean that the custom, mentioned therein laid down as the custom prevailing among some only of the Latin Christians residing in the taluks mentioned therein. The correct interpretation according to me is that among the Latin Christians of Travancore certain classes residing in the taluks mentioned in S.30 of the Act are stated to be followers of the custom mentioned therein. The full bench ruling reported in 30 TLJ 470 is to the effect that S.30 of the Act lays down the custom among Roman Catholic Christians of the Latin Rite in the taluks mentioned therein. The ruling reported in 1956 KLT 289 is also to the same effect. The above two rulings do not seem to have suspected for a moment that it laid down the custom among only a sect of the Latin Christians of the taluks mentioned therein .... In the face of the statutory recognition of the custom and the rulings reiterating that custom there is no occasion even for discussing the evidence to the contrary adduced by defendants."
On appeal, the Subordinate Judge held:
"The contention that the custom as statutorily recognised in S.30 of the Act) is obtained only among certain classes of the Latin Catholics in Karunagapally is without any force. The words 'certain classes' take in all the Latin Catholics, living in the Karunagapally taluk and other taluks mentioned. The words used are intended to mean only that they form a class of the entire Roman Catholic Christians in the State. The words do not afford an interpretation that there are different classes in the Karunagapally taluk itself and that the custom stated is obtained only in some of those classes when such a custom obtained in the whole of the taluk is statutorily recognised and upheld by the decisions of the highest court in the land, it is not necessary to go into any evidence regarding the same to establish a custom."
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